v. Herrera
Filed
12/11/12 P. v. Herrera CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE ANTONIO
HERRERA,
Defendant and Appellant.
F062641
(Super. Ct. No. 10CM8934)
APPEAL
from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
Gregory
M. Chappel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
A bullet fired from a passing pickup
truck struck Ricardo Uribe Castro in the leg.
He lost consciousness and fell to the ground. After he regained consciousness, he used his
other leg to push himself beneath a parked truck, from where he heard a truck
stop, heard doors open and close, and heard, “Where’s that punk?,†and,
“Where’s that buster?â€
name="_ftnref2" title="">[2]
He lost consciousness again. A
helicopter airlifted him to a hospital where he had surgery to repair a
shattered bone in his leg. He first told
police that he did not see the person with the gun because the cab of the
pickup truck was dark and he was just trying to get away. He later told police that José Antonio Herrera shot him and that Herrera had threatened him
earlier.
title="">[3] Still later, he identified
Herrera in a photo lineup. At trial, he
testified that he could not identify Herrera as the shooter because he was
running away when he heard the gunfire and because the back-seat passenger had
a firearm, too.
name="_ftnref4" title="">[4]
A jury found Herrera guilty of attempted murder and found
criminal-street-gang and firearm allegations true. The court imposed an aggregate sentence of 56 years to
life. On appeal, he challenges the criminal-street-gang and firearm enhancements. We order the criminal-street-gang enhancement stricken but otherwise affirm
the judgment.
BACKGROUND
On December 28, 2010, the district
attorney filed an information
to murder Uribe (Pen. Code, §§ 187, subd. (a), 664)
intentional discharge of a firearm within the meaning of section 12022.53,
subdivisions (c) and (e)(1) [“subdivision (c)†and “subdivision (e)(1),â€
respectively],
name="_ftnref7" title="">[7] personal and intentional discharge of a
firearm causing great bodily injury within the meaning of section 12022.53,
subdivision (d) [“subdivision (d)â€] and subdivision (e)(1), and personal
infliction of great bodily injury within the meaning of section 12022.7,
subdivision (a).
name="_ftnref8" title="">[8]
Additionally, the information alleged, inter alia, a 2004 conviction of
assault with a deadly weapon both as a serious felony or violent felony or juvenile adjudication within
the meaning of the three strikes
law (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)) and as a prior prison term (§ 667.5, subd.
(a)). The information also alleged,
inter alia, commission of both the attempted murder and the 2004 assault with a
deadly weapon for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).)
On March 7, 2011, outside the presence
of the jury, Herrera admitted the allegation of the 2004 conviction of assault
with a deadly weapon. On March 9, 2011, the jury found him guilty of attempted murder. The jury found the criminal street gang
allegation true, found the allegation of the personal and intentional discharge
of a firearm within the meaning of subdivision (e)(1) true, and found the
allegation of the personal and intentional discharge of a firearm causing great
bodily injury within the meaning of subdivision (e)(1) true. The jury found the allegation of the personal
infliction of great bodily injury within the meaning of section 12022.7,
subdivision (a) not true, found the allegation of the personal and intentional
discharge of a firearm within the meaning of subdivision (c) not true, and found
the allegation of the personal and intentional discharge of a firearm causing
great bodily injury within the meaning of subdivision (d) not true.
On May 6, 2011, the court sentenced
Herrera to an aggregate term of 56 years to life:
· For the attempted murder, an aggravated
term of nine years doubled to 18 years under the three strikes law (§§ 190,
subd. (a), 664, subd. (a), 667, subd. (e)(1),
1170.12, subd. (c)(1));
· For the criminal-street-gang
enhancement, a consecutive term of 10 years
(§§ 186.22, subd. (b)(1)(C), 667.5, subd. (c)(12));
· For the prior-prison-term enhancement,
a consecutive term of three years
(§ 667.5, subd. (a)); and
· For the enhancement for personal and
intentional discharge of a firearm causing great bodily injury (subd. (e)(1)),
a consecutive term of 25 years to life.
DISCUSSION
1. Firearm Enhancement: Pleading
Herrera requests the striking of the firearm enhancement, which he
argues was “not pled as expressly required pursuant to the statute.†Additionally, he argues that his lack of
notice “of the circumstances under which he might be exposed to such additional
punishment†denied him due process. The Attorney General argues the contrary. We agree with the Attorney General.
Herrera elaborates by arguing not only “that the imposition of the
enhancement pursuant to [] subdivision (e)[(1)
expressly required pursuant to the statuteâ€[
which he might be exposed to such additional punishment†denied him due
process. The information, he continues,
did “not indicate in any fashion that any person other than [he] was involved
in the charged offense†and failed to inform him “that [he] could suffer a
further penalty under the sentencing enhancement even if he was not found to
have ‘personally and intentionally discharged a firearm’ in the commission of
the offense.†He argues that the
information put him on notice that the enhancements in section 12022.53, subdivisions
(c) or (d) would apply “only†if he had, first, “committed the offense in
association with or for the benefit of a criminal street gangâ€
second, “‘personally and intentionally discharged a firearm’ during the
commission of the crime, the latter of which was specifically found ‘not true’
by the jury.†(Italics in
original.) “The prosecutor in this case
chose to merely refer to [] subdivision (e)[(1)],†he claims, but “without
actually alleging the facts he sought to prove which would subject [him] to the
enhancement provided for in [] subdivisions (d) and (e)[(1)].â€
Herrera’s argument is not persuasive. Subdivision (e)(1) “imposes vicarious
liability under this section on aiders and abettors who commit crimes in
participation of a criminal street gang†but “merely sets forth the general
requirements of pleading and proof for sentencing enhancements.†(People
v. Garcia (2002) 28 Cal.4th 1166, 1171, 1175.) He insists that subdivision (j) requires the
prosecutor to “expressly†plead the facts, but our Supreme Court observes that
subdivision (j) does not “concern vicarious liability†or “shed light on the
substantive requirements for subdivision [] (c) or (d).†(Id. at
p. 1174.) Subdivision (j) “is simply a
restatement of section 1170.1, subdivision (e), which provides that ‘[a]ll
enhancements shall be alleged in the accusatory pleading and either admitted by
the defendant in open court or found to be true by the trier of fact.’†(Id. at
p. 1175.)
Herrera’s argument about the allegations section 12022.53
authorizes is essentially a quibble with the wording of the statute. The Legislature wrote subdivisions (c) and
(d) to apply to “any person†who “personally
and intentionally discharges a firearm†and to “any person†who “
a firearm and proximately causes great bodily injury,†respectively. (Subds. (c), (d), italics added.) In a different
subdivision of the same statute, the
Legislature broadened the application of those two subdivisions to “
commission of an offense if,â€
subdivision [] (c)[] or (d).†(Subd.
(e)(1), italics added.) The information
that Herrera challenges not only paraphrased some of the statutory language in subdivisions (c), (d), and (e)(1)
but also cited each and every one of
those subdivisions.
Even so, Herrera relies on three cases – People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), People v. Botello (2010)
183 Cal.App.4th 1014 (Botello), and
1009 (Arias) – to seek relief. In Mancebo,
“the trial court erred at sentencing when it purported to substitute the
the properly pleaded and proved gun-use circumstances.†(Mancebo,
supra, at p. 754, italics added.)
The record here is to the contrary.
Here, the amended information pled
the firearm allegations pursuant to subdivisions (c), (d), and (e)(1). With reference
to subdivisions (c) and (d), the jury found not
true the allegations that Herrera “personally discharged a firearm within
the meaning of [subdivision] (c)†and that he “personally discharged a firearm
and caused great bodily injury upon the person of [] Uribe within the meaning
of [subdivision] (d).†With reference to
subdivision (e)(1), the jury found true the
allegations that “one of the principals personally and intentionally discharged
a firearm during [Uribe’s attempted murder] within the meaning of [subdivision]
(e)(1)†and that “one of the
principals personally inflicted great bodily injury upon the person of [] Uribe
within the meaning of [subdivision] (e)(1).â€
Mancebo is inapposite.
In Botello, “the
information charged each defendant with personally committing acts specified in
the firearm enhancements of [] subdivisions (b) through (d), but
through subdivision (e)(1).†(
1027, italics added.) Here, on the other
hand, the amended information expressly
pled subdivisions (c), (d), and
(e)(1). Herrera’s reliance on
In Arias, “the charging
document alleged defendant unlawfully and with malice aforethought attempted to
murder [] but did not allege the attempted murders were willful, deliberate,
and premeditated†and did not “reference subdivision (a) of section 664.†(
1017.) “No request was made to amend the
information to include the required allegations, and nothing in the record
suggests the information was ever amended.†(Ibid.) “The jury’s attempted murder verdicts did
not include special findings as to premeditation and deliberation, but found
‘first degree attempted murder’ as to both victims.†(Ibid.)
Arias relied on Mancebo to order the section 664, subdivision (a) enhancement
stricken because “neither the information nor any pleading gave defendant
notice that he was potentially subject to the enhanced punishment provision for
attempted murder under section 664, subdivision (a).†(Arias,
supra, 182 Cal.App.4th at pp. 1019, 1021.)
Here, the amended information expressly
pled Herrera’s potential criminal liability under the subdivision (e)(1)
enhancement. His reliance on
In short, Herrera’s attempt to bootstrap the inapposite holdings
of Mancebo, Botello, and
not the least bit persuasive. “No
accusatory pleading is insufficient, nor can the trial, judgment, or other
proceeding thereon be affected by reason of any defect or imperfection in
matter of form which does not prejudice a substantial right of the defendant
upon the merits.†(§ 960.) That is so here.
826; People v. Sandoval (2006) 140
Cal.App.4th 111, 132.)
2. Firearm Enhancement: Assistance of Counsel
Herrera argues that his attorney’s failure to object to amendment
of the information “to conform to proof†by addition of the citation to
subdivision (e)(1) constitutes ineffective assistance of counsel. The Attorney
General argues the contrary. We agree
with the Attorney General.
To establish ineffective assistance of counsel, the defendant has
to show, first, that counsel’s representation fell below an objective standard
of reasonableness and, second, that
there is a reasonable probability – a probability sufficient to undermine
confidence in the outcome – that but for counsel’s unprofessional errors the
result of the proceeding would have been different. (Williams
v. Taylor (2000) 529 U.S. 362, 390-391 (Williams),
citing Strickland v. Washington (1984) 466 U.S. 668,
687-688, 694 (Strickland).) Surmounting Strickland’s high bar is
never an easy task.†(Padilla v.
Kentucky (2010) 559 U.S.
___, ___ [176 L.Ed.2d 284, 297; 130 S.Ct. 1473, 1485] (Padilla).) “‘Judicial
scrutiny of counsel’s performance must be highly deferential.’†(Ibid.,
quoting Strickland, supra, 466
U.S. at p. 689.)
Herrera attempts to show his
attorney’s representation fell below an objective standard of reasonableness by
arguing there simply could be no satisfactory explanation for failure to
object. The Attorney General, on the
other hand, infers from the record that the “critically important†task for
Herrera’s attorney was to impeach Uribe’s credibility as much as possible since
no other eyewitness testified about, and no physical evidence linked Herrera
to, the shooting. To discharge that
duty, the Attorney General elaborates, Herrera’s attorney elicited admissions
from Uribe that he gave inconsistent statements to the police, lied to the
police, and withheld key information from the police. As a matter of trial tactics, the Attorney
General emphasizes, Herrera’s attorney could have chosen not to object on the
rationale that any reliance by the prosecutor on alternate theories of criminal
liability could only draw additional attention to Uribe’s conflicting
statements about who might have shot him.
In argument to the jury, Herrera’s attorney vigorously attacked Uribe’s
credibility.
“When a claim of ineffective assistance is made on direct appeal,
and the record does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no
satisfactory explanation. (
543, 569, citing People v. Pope (1979) 23 Cal.3d 412, 426.) On the basis of her analysis of the record
before us, the Attorney General states a satisfactory explanation for the
failure of Herrera’s attorney to object.
“Strickland does not guarantee perfect representation, only
a “‘reasonably competent attorney.’†(Harrington
v. Richter (2011) __ U.S. __, __ [178 L.Ed.2d 624, 645; 131 S.Ct. 770,
791], quoting Strickland, supra, 466 U.S. at p.
687.) Our highly deferential review of
the record on direct appeal satisfies us that Herrera received the effective assistance of competent counsel to which he is
constitutionally entitled. (Padilla, supra, 559 U.S. at p. ___
[176 L.Ed.2d 284, 297; 130 S.Ct. 1473, 1485], Strickland, supra, 466 U.S. at pp. 686, 689.)
3. Firearm Enhancement: Jury Findings
Herrera argues that the jury findings are insufficient to support
imposition of the enhancement in subdivision (d) as applied by subdivision
(e)(1). The Attorney General argues the contrary. We agree with the Attorney General.
Herrera’s argument has two major components. First, he claims that the jury failed to find
that a principal committed the personal and intentional discharge of a firearm causing great bodily
injury within the meaning of subdivision (d) as applied by subdivision (e)(1)
but found only that a principal personally and intentionally discharged a
firearm within the meaning of subdivision (e)(1). That, he contends, “would potentially applyâ€
the jury’s finding to subdivision (c).
Second, he argues that the jury “did not find that the same principal
who discharged the firearm caused the great bodily injury or that the great
bodily injury was proximately caused as a result of the discharge of the
firearm by the principal found to have discharged that firearm.â€
The record shows that Uribe suffered great bodily injury from a
bullet fired by either Herrera
were to find that Herrera attempted to murder Uribe and committed the crime for the benefit of a criminal street gang,
the jury had to decide the truth of the allegation “that one of the principals personally and intentionally discharged a
firearm during that crime and caused
great bodily injury.†(CALCRIM No. 1402,
italics added.) The court also
instructed the jury that the prosecutor had the burden of proof that, first, “
personally and intentionally discharged a firearm during the commission of the
crime,†and, second, “That person
intended to discharge the firearm,†and, third,
“That person’s act caused great
bodily injury to another person.†(
So instructed, the jury found that a
principal personally and intentionally discharged a firearm within the meaning
of subdivision (e)(1) and that a
principal personally inflicted great bodily injury on Uribe within the meaning
of subdivision (e)(1). With those
findings, on the evidence at trial, the jury necessarily found that the same
principal – the back-seat passenger – personally and intentionally discharged
the firearm causing great bodily injury to Uribe. The rule is well-settled that a verdict not only “is to be given a
reasonable intendment†but also “is to be construed in light of the issues
submitted to the jury and the instructions of the court†and that the verdict
“must be upheld when, if so construed, it expresses with reasonable certainty a
finding supported by the evidence.†(
702, 710.) The rule applies equally to a
guilty verdict and to a true finding on a sentence enhancement allegation. (People
v. Chevalier (1997) 60 Cal.App.4th 507, 514 (Chevalier).)
Just as the function of the jury is to
find whether the necessary facts have been proven by the evidence at trial
in light of the court’s instructions, so the function of the verdict is to
register the jury’s findings whether the evidence sufficiently establishes
those facts. (Chevalier, supra, 60 Cal.App.4th at p. 514.) “There is no need in this factfinding process
for the enumeration in the verdict of all of the elements of the offense or
enhancement. Where the jury is fully
instructed as to each element of a sentence enhancement, it is not necessary
that the verdict enumerate each of those elements.†(Ibid.) On the record here, Herrera fails to persuade
us that the jury’s findings are insufficient.
4. Criminal-Street-Gang
Enhancement
Herrera argues, the Attorney General agrees, and we concur that in
light of the imposition of the firearm enhancement pursuant to subdivision
(e)(1) the imposition of the criminal-street-gang enhancement pursuant to
section 186.22, subdivision (b)(1) cannot stand. (People
v. Brookfield (2009) 47 Cal.4th 583, 590; People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1238;
1275, 1281-1282; subdivision (e)(2).)
>
DISPOSITION
The matter is
remanded to superior court with directions (1) to strike the imposition of a consecutive term
of 10 years on the criminal-street-gang enhancement
(§§ 186.22, subd.
(b)(1)(C), 667.5, subd. (c)(12)), (2) to amend the abstract of judgment accordingly, and (3) to send a
certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. Herrera has no right
to be present at those proceedings. (See People v.
Virgil (2011) 51 Cal.4th 1210, 1234-1235.)
In all other respects, the judgment is
affirmed.
_____________________
Gomes,
Acting P.J.
WE CONCUR:
_____________________
Kane, J.
_____________________
Franson, J.
Uribe Castro testified he does not use the name Castro, so all later references
to him are to Uribe.
disrespect for a Norteño. Uribe
testified not only that he was a Norteño but also that he was a Norteño
drop-out. The prosecution’s gang expert
testified that he was a drop-out who had family members in the gang who still
protected him and that the gang was still part of his lifestyle.
